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October 27, 1967


The opinion of the court was delivered by: Marovitz, District Judge.


Motion of Defendant Railway to Dismiss

This is a two count tort action, removed by defendants from the Circuit Court of Cook County, Illinois. Diversity of citizenship is present, together with the requisite jurisdictional amount. In Count I plaintiff alleges that while he was disabled along and upon a railroad track at or near the Village of Valley Park, County of St. Louis, State of Missouri, and while he was in the exercise of due care, defendants "disregarding their duty * * * negligently and carelessly owned, operated, managed and controlled * * * (a) locomotive and four-car train so as to cause it to run into, upon and over and against the plaintiff * * *" In Count II plaintiff avers that the above mentioned conduct of defendant was wilful and wanton. Each count seeks joint and several damages in the amount of one million dollars.

Defendant, St. Louis-San Francisco Railway, a Missouri corporation, with its principal place of business also in Missouri, appears specially to move for an order of dismissal on the grounds that personal jurisdiction, valid service of process, and venue are all lacking.

Personal service was made by plaintiff upon Walter Forst, Chief Clerk of defendant's Chicago office, at that office. Defendant challenges that service as illegal, null and void, since in its view, it is not subject to the in personam jurisdiction of this Court. In support thereof, the railroad alleges the following: (1) It is a Missouri corporation not qualified to do and not doing business in Illinois, and has not consented to be sued within Illinois or this judicial district; (2) No part of the said cause of action arose from any act of this defendant within Illinois; (3) Its lines of railroad lie entirely outside Illinois and none of its tracks, railroad beds, stations, or other equipment is located within Illinois; (4) None of its employees is authorized by the corporation to accept service of process in Illinois on its behalf; (5) It does not carry out any of its corporate functions, sell tickets, issue bills of lading, make contracts for the transportation of freight or passengers, or receive or pay out any money in Illinois; (6) It does not maintain any fiscal or financial agent in Illinois, nor do any of its corporate or managerial officers reside within the state; (7) All contracts for carriage are subject to acceptance at defendant's principal place of business in Missouri; (8) The sole and only activity of this defendant within the State of Illinois is the solicitation of traffic for its lines of railroad operated wholly outside the state, and its employees and the office are maintained solely for this purpose; (9) The only property owned and used within the State of Illinois is office furniture in its Chicago office.

To this picture plaintiff adds that the Chicago office has been in existence for at least 37 years, and alleges certain other named but unsubstantiated activities of defendant within Illinois, which are categorically denied in affidavits by defendant.

We will consider separately below the contested issues of jurisdiction, service of process, and venue.

I. Jurisdiction

In a diversity case, there is no longer question that the law of the state in which the District Court sits determines whether a defendant is subject to its in personam jurisdiction. Canvas Fabricators, Inc. v. William Hooper & Sons Co., 199 F.2d 485 (7th Cir. 1952); Woods v. Interstate Realty Co., 337 U.S. 535, 537-538, 69 S.Ct. 1235, 93 L.Ed. 1524 (1948). Hence, we are duty-bound to respect the law of Illinois governing jurisdiction.

Defendant advances Sec. 17 of the Illinois Civil Practice Act, Ill.Rev.Stat. 1965, c. 110, § 17, as controlling of the instant case. Insofar as relevant the section provides:

  "(1) Any person, whether or not a citizen or resident
  of this State, who in person or through an agent does
  any of the acts hereinafter enumerated, thereby
  submits said person, and, if an individual, his
  personal representative, to the jurisdiction of the
  courts of this State as to any cause of action
  arising from the doing of any of said acts:
    (a) The transaction of any business within this
    (b) The commission of a tortious act within this
    (c) The ownership, use, or possession of any real
    estate situated in this State;
    (d) Contracting to insure any person, property or
    risk located within this State at the time of
  (2) Service of process upon any person who is subject
  to the jurisdiction of the courts of this State, as
  provided in this section, may be made by personally
  serving the summons upon the defendant outside this
  State, as provided in this Act*fn1, with the same
  force and effect as though summons had been
  personally served within this State.
  (3) Only causes of action arising from acts
  enumerated herein may be asserted against a defendant
  in an action in which jurisdiction over ...

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